Why and how to notify your spouse about the creation of a company?

If you have a joint property regime, the partners of the company must notify their spouse of their participation in its creation. Particularly if their contributions represent property that they have jointly with their spouse who is not a partner in the company. Indeed, for the final registration of a company in the register of the arbitration court, it is necessary to present a certificate about the spouse. Failure to comply with this information obligation may also result in the company being declared invalid. Of course, to be valid, this document must contain certain data. This article will tell you everything you need to know about this mandatory procedure in the context of starting a business.

Why notify your spouse about the formation of a company?

On the regime of joint property of spouses

If you change your marital status, you must inform the social security service (Sécurité Social), for example when you get married, following various procedures and providing various documents confirming this change. The joint property regime is a legal regime that applies to all spouses who have not signed a marriage contract before a notary. Thus, this matrimonial regime includes three different types of property:

• Personal property owned by one of the spouses.
• Personal property owned by the other spouse.
• Income or property common to both spouses.

Specifically, personal property is property that each spouse owned before marriage. It is also property that each spouse received as an inheritance or gift during the marriage. In these cases, each of them has no right to the property of the other. Community property, on the other hand, is property acquired by both spouses during their marriage. These include, but are not limited to, earnings, wages, and income from personal property.

Indeed, the cooperating spouse, regardless of whether he is associated with the social security system for the self-employed or with the general regime, must contribute to compulsory insurance.

Duty to inform spouse and establishment of business

As part of setting up a business, the spouse partner or project manager, of course, transfers the assets that belong to him or her. But he also has full opportunity to pledge the joint property, with the exception of the part that is pledged. To do this, he must inform his wife about his decision and, if necessary, obtain the latter’s consent. Moreover, the founder/partner of the company must attach the spouse’s identity card to the founding documents, in particular if he wishes to:

• Sell a company or property related to his profession.
• Assign joint property (when creating an individual enterprise EI and Micro-Intreprise).
• Provide joint property as collateral (the collateral must indicate the consent of her spouse).
• Get social rights with fonds communs.

Thus, company founders must include in their application for registration supporting documents (identity document, proof of residence, etc.) that justify the effective fulfillment of this obligation to inform before they can exercise their professional activities, whether then commercial activity, liberal activity or craft activity. This is, in accordance with Article R. 123-121-1 Code de commerce:

When registering a company, an individual, under his own responsibility, submits a certificate of notification of his spouse, as provided for in Art. R. 123-102 form.

It indicates the consequences of possible debts on the joint property of the spouses when carrying out professional activities.

Please note that spouses can change the marital arrangement by notifying the District Court or Tribunal (TGI). The change comes into force only after the judge makes a decision in relation to third parties and only three months after its approval by the court of instance or tribunal.

Who does this obligation apply to?

As mentioned above, the spouse partner or director of the company must attach to their registration file a certificate of disclosure of information to their spouse. But only if the following conditions are met:

• He is married under the joint property regime, that is, one of the following social security regimes: le régime de la communauté réduite aux acquêts, le régime de la communauté universelle.
• He wants to set up a sole proprietorship EI/Micro-Intreprise, whether it is a commercial or craft business.

In short, in addition to the documents required to register a company with the Register of Trade and Commerce (RCS) or the Register of Professions (RM), you must also submit this certificate of information to your spouse.

Informing your spouse: how to proceed?

To notify your spouse of the property of his contribution to the formation of the company (or of his decision to form his own sole proprietorship), simply send him certified mail (preferably with return receipt requested). It is also possible to deliver the letter manually in exchange for a receipt. Otherwise, the spouse must sign the articles of association or contribution agreement (if there is one).

Notifying your spouse is not always a limitation; it also allows the spouse to protect his personal property, including his primary residence, by claiming relief from forfeiture. If the primary residence was acquired with marital funds, the consent of both spouses will be required to make it the subject of a forfeiture relief application.

Help: what should it contain?

The certificate of informing the spouse of the partner or entrepreneur initiating the project must contain the following mandatory information:

• Identity card and contact details of the company founder.
• Last name, first name and contact details of his wife.
• Obligation to inform your spouse about joint property.

The founder of the company is obliged to indicate the professional activity of his spouse (even if the latter is engaged only in liberal or craft activities).

It should be noted that the fact that the spouse is indicated in the charter makes it possible, in the event of the death of the spouse-partner of the business, to indicate to whom his share in the company will be transferred, upon presentation of certain supporting documents (certificate of inheritance, document indicating family ties, etc.), this maybe his wife or his children. Moreover, personal or professional accounts risk being blocked, pending a notarial deed indicating the transfer of an inheritance, or a certificate of inheritance indicating a relationship with the deceased (spouse, children...).

Sample certificate of informing a spouse

To make your task as easy as possible, here is a sample Certificate of Delivery of Information to a Community Spouse that you can rely on when drafting this important document.